SCOTUS and Gay Marriage

[carlfense]

It works both ways doesn't it? Would the person being interviewed need to be of sound mind not to get pissed they didn't get the job from a perceived feeling they had that the business owner discriminated against them and then proceeded to sue?

The burden of proof is on the party bringing the action . . . i.e. the fake gay guy/gal.

 

Here is an example of how the three-step process for proving claims of intentional discrimination through circumstantial evidence would operate under ENDA. Assume Paige brings a suite against Acme Co. claiming Acme fired her because she is a lesbian. Her initial proof would consist of showing that she is a lesbian or was perceived to be a lesbian, that she had received excellent annual job evaluations for the seven years she had been working, and that Acme fired her one week after she told her supervisor she was a lesbian. This very simple, basic prima facie case would establish the necessary circumstantial evidence of discrimination to meet the first step of the process.

 

Acme must then offer a legitimate, non-discriminatory reason for firing Paige. Acme might say it fired Paige because her work had deteriorated significantly over the past several months or because the company was downsizing its department, it needed to fire several people, and Paige was simply not one of its star employees. All Acme has to do, as this point, is produce some legitimate, non-discriminatory reason for firing Paige.

 

In response, Paige must overcome the most difficult hurdle of the three-step process: she must present evidence to prove that, despite the offered reason, Acme's decision to fire her was based on Acme's real discriminatory intent regarding her sexual orientation. If Acme stated it fired Paige because of the recent deterioration of her work, Paige might attempt to show she had received positive responses from some supervisors about her work during the time period in question. If Acme claimed it was downsizing, Paige might have a harder task in proving she was, in fact, a start employee and someone who would have been retained if not for her sexual orientation. A key requirement is that Paige bears the burden of persuasion on these points. The bottom line is that Paige must prove that Acme fired her because of its actual discriminatory intent and that any of the reasons offered by Acme are merely pretexts for its discrimination based on sexual orientation.

http://www.civilrights.org/lgbt/enda/burden-of-proof.html

[BigRedBuster]

Again though....what proof are you going to put in front of the judge or jury that proves your client is gay? Just his word under oath?

Your incredulity makes it sound like you think that this is unusual. Do you think that relying on sworn testimony is rare?

It depends on the sworn testimony.

 

If I am accused of robbing a bank and I swear under oath that I didn't do it, is that good enough? If I swear under oath that Carlfense robbed the bank, is that enough proof that it's fact? What if Carlfense claims he didn't do it under oath?

 

Now, if I swear under oath that I didn't do it and my legal team is then able to back up my testimony by providing alibis and proof that I am telling the truth, then great. If I say I saw Carlfense do it and someone else saw him do it to and Carlfense has absolutely no defense as to where he was and he has clothing exactly what the bank robber was wearing and all of a sudden the next day he is spending thousands of dollars in cash on a new Mercedes that he had no means of having before the bank robbery, which "Oath" is believable?

[Ulty]

Again though....what proof are you going to put in front of the judge or jury that proves your client is gay? Just his word under oath?

You are right to be skeptical of everything...that skepticism is what keeps you alert as a business owner so you can protect yourself.

 

But in hundreds of discrimination claims I processed, I never once had to go as far as to look for hard proof of a plaintiff belonging to a protected class, unless it was to verify someone's disability. I'd operate under the assumption that the plaintiff belonged in the protected class (of course it was usually obvious anyway) and then look at the actual harms and discriminatory practices that were being alleged.

 

In a hypothetical sexual orientation claim (depending on how the law was written), if we get to the point where we are haggling over proof of someone's gayness, that means that all other evidence must somehow point against you. If you had a legitimate reason for not hiring the guy, it wouldn't matter. If you didn't hire lesser qualified candidates after interviewing this guy, it wouldn't matter. If your interactions were professional and appropriate during the interview, it wouldn't matter. If you don't pass those tests and your only remaining defense is questioning his gayness, something stinks with your business, and having it actually go to court from there might just be your punishment for being so sloppy!

[carlfense]

It depends on the sworn testimony.

 

If I am accused of robbing a bank and I swear under oath that I didn't do it, is that good enough? If I swear under oath that Carlfense robbed the bank, is that enough proof that it's fact? What if Carlfense claims he didn't do it under oath?

I think that you're missing the point . . . it doesn't really matter whether you think it's "good enough." It doesn't really matter if I think it's "good enough."

 

It might be sufficient. It might not be sufficient. That's the way it goes.

 

Now, if I swear under oath that I didn't do it and my legal team is then able to back up my testimony by providing alibis and proof that I am telling the truth, then great. If I say I saw Carlfense do it and someone else saw him do it to and Carlfense has absolutely no defense as to where he was and he has clothing exactly what the bank robber was wearing and all of a sudden the next day he is spending thousands of dollars in cash on a new Mercedes that he had no means of having before the bank robbery, which "Oath" is believable?

Backing up the testimony, eh? You're answering your original question.

[Ulty]

Again though....what proof are you going to put in front of the judge or jury that proves your client is gay? Just his word under oath?

Your incredulity makes it sound like you think that this is unusual. Do you think that relying on sworn testimony is rare?

It depends on the sworn testimony.

 

If I am accused of robbing a bank and I swear under oath that I didn't do it, is that good enough? If I swear under oath that Carlfense robbed the bank, is that enough proof that it's fact? What if Carlfense claims he didn't do it under oath?

 

Now, if I swear under oath that I didn't do it and my legal team is then able to back up my testimony by providing alibis and proof that I am telling the truth, then great. If I say I saw Carlfense do it and someone else saw him do it to and Carlfense has absolutely no defense as to where he was and he has clothing exactly what the bank robber was wearing and all of a sudden the next day he is spending thousands of dollars in cash on a new Mercedes that he had no means of having before the bank robbery, which "Oath" is believable?

Sometimes people lie, and you have to weigh the totality of the evidence. But your argument is starting to sound like a question of the validity of legal testimony in general. You aren't even talking about discrimination any more.

[carlfense]

Sometimes people lie, and you have to weigh the totality of the evidence. But your argument is starting to sound like a question of the validity of legal testimony in general. You aren't even talking about discrimination any more.

[Ulty]

If you're that worried about proving whether or not someone is gay, a 5 minute witness interview would be sufficient. A fmaily member saying "yep, he came out of the closet last year," or a boyfriend saying that they used to date. It doesn't have to be the Spanish Inquisition.

[carlfense]

If you're that worried about proving whether or not someone is gay, a 5 minute witness interview would be sufficient. A fmaily member saying "yep, he came out of the closet last year," or a boyfriend saying that they used to date. It doesn't have to be the Spanish Inquisition.

Objection, hearsay, foundation.

[BigRedBuster]

The legal process on these claims could get very interesting.

 

Here is another situation that I thought of.

 

In HS, we had a teacher who to my knowledge was not gay. He was married anyway with kids. HOWEVER, there was speculation simply because he was so effeminate. Now. let's say some absolute jack ass idiot fires this guy because he is just too "gay". He isn't really gay but when you get around some homophobic people it is amazing what they will say or do.

 

So....this guy ISN'T gay but he is fired because the jackass thinks he MIGHT be gay.

 

Does this law apply to him?

[BigRedBuster]

Again though....what proof are you going to put in front of the judge or jury that proves your client is gay? Just his word under oath?

Your incredulity makes it sound like you think that this is unusual. Do you think that relying on sworn testimony is rare?

It depends on the sworn testimony.

 

If I am accused of robbing a bank and I swear under oath that I didn't do it, is that good enough? If I swear under oath that Carlfense robbed the bank, is that enough proof that it's fact? What if Carlfense claims he didn't do it under oath?

 

Now, if I swear under oath that I didn't do it and my legal team is then able to back up my testimony by providing alibis and proof that I am telling the truth, then great. If I say I saw Carlfense do it and someone else saw him do it to and Carlfense has absolutely no defense as to where he was and he has clothing exactly what the bank robber was wearing and all of a sudden the next day he is spending thousands of dollars in cash on a new Mercedes that he had no means of having before the bank robbery, which "Oath" is believable?

Sometimes people lie, and you have to weigh the totality of the evidence. But your argument is starting to sound like a question of the validity of legal testimony in general. You aren't even talking about discrimination any more.

 

 

I'm simply giving an example of testimony under oath that can't be trusted since it is being put out there as someone under oath should be trusted.

[Ulty]

If you're that worried about proving whether or not someone is gay, a 5 minute witness interview would be sufficient. A fmaily member saying "yep, he came out of the closet last year," or a boyfriend saying that they used to date. It doesn't have to be the Spanish Inquisition.

Objection, hearsay, foundation.

And these cases don't begin in court, and usually don't end up there at all. A desk jockey like me is going to make the decision based on the preponderance of the evidence and pass along my findings to whatever Commission has the legal authority to wrap it up. If a company or attorney crowed about "objections" or "hearsay" without evidence of their own, I laugh with my coworkers about the stupid overzealous attorney and process the case anyway.

[BigRedBuster]

It depends on the sworn testimony.

 

If I am accused of robbing a bank and I swear under oath that I didn't do it, is that good enough? If I swear under oath that Carlfense robbed the bank, is that enough proof that it's fact? What if Carlfense claims he didn't do it under oath?

I think that you're missing the point . . . it doesn't really matter whether you think it's "good enough." It doesn't really matter if I think it's "good enough."

 

It might be sufficient. It might not be sufficient. That's the way it goes.

 

Now, if I swear under oath that I didn't do it and my legal team is then able to back up my testimony by providing alibis and proof that I am telling the truth, then great. If I say I saw Carlfense do it and someone else saw him do it to and Carlfense has absolutely no defense as to where he was and he has clothing exactly what the bank robber was wearing and all of a sudden the next day he is spending thousands of dollars in cash on a new Mercedes that he had no means of having before the bank robbery, which "Oath" is believable?

Backing up the testimony, eh? You're answering your original question.

 

 

Really? That is what I'm asking for from you. I'm asking for how you would back up the testimony of someone who is gay and you having been able to produce any way of doing it.

[Ulty]

Again though....what proof are you going to put in front of the judge or jury that proves your client is gay? Just his word under oath?

Your incredulity makes it sound like you think that this is unusual. Do you think that relying on sworn testimony is rare?

It depends on the sworn testimony.

 

If I am accused of robbing a bank and I swear under oath that I didn't do it, is that good enough? If I swear under oath that Carlfense robbed the bank, is that enough proof that it's fact? What if Carlfense claims he didn't do it under oath?

 

Now, if I swear under oath that I didn't do it and my legal team is then able to back up my testimony by providing alibis and proof that I am telling the truth, then great. If I say I saw Carlfense do it and someone else saw him do it to and Carlfense has absolutely no defense as to where he was and he has clothing exactly what the bank robber was wearing and all of a sudden the next day he is spending thousands of dollars in cash on a new Mercedes that he had no means of having before the bank robbery, which "Oath" is believable?

Sometimes people lie, and you have to weigh the totality of the evidence. But your argument is starting to sound like a question of the validity of legal testimony in general. You aren't even talking about discrimination any more.

 

 

I'm simply giving an example of testimony under oath that can't be trusted since it is being put out there as someone under oath should be trusted.

 

It's a fun conversation either way.

[BigRedBuster]

If you're that worried about proving whether or not someone is gay, a 5 minute witness interview would be sufficient. A fmaily member saying "yep, he came out of the closet last year," or a boyfriend saying that they used to date. It doesn't have to be the Spanish Inquisition.

Objection, hearsay, foundation.

And these cases don't begin in court, and usually don't end up there at all. A desk jockey like me is going to make the decision based on the preponderance of the evidence and pass along my findings to whatever Commission has the legal authority to wrap it up. If a company or attorney crowed about "objections" or "hearsay" without evidence of their own, I laugh with my coworkers about the stupid overzealous attorney and process the case anyway.

 

So, if the guy suing me signs an affidavit saying he is gay and he finds a schmuck family member that he promises to share the money with to sign an affidavit that he came out of the closet last year.....I'm screwed.

[Ulty]

The legal process on these claims could get very interesting.

 

Here is another situation that I thought of.

 

In HS, we had a teacher who to my knowledge was not gay. He was married anyway with kids. HOWEVER, there was speculation simply because he was so effeminate. Now. let's say some absolute jack ass idiot fires this guy because he is just too "gay". He isn't really gay but when you get around some homophobic people it is amazing what they will say or do.

 

So....this guy ISN'T gay but he is fired because the jackass thinks he MIGHT be gay.

 

Does this law apply to him?

 

That situation is dripping with discriminatory animus, so an enterprising investigator might find a way to make it apply, depending on how the claim is written. This guy might file a claim under sexual orientation as well as sex (which we all know already we cannot discriminate on). Under the sex discrimination claim, he might cite his femininity and say that women act exactly the same as he did, but the women were not fired. If all other things are similar, and there wasn't a legitimate reason for the termination, he might have more of a claim of sex discrimination than on orientation.

 

I believe some cases like this may exist already. It can happen with transgendered folks who can already make such claims on the basis of sex and win.